R v Maria Kwiatkowska

This case was listed under the random initials BAJ to enable the Court to consider the applicant’s request for anonymity. However, the applicant sadly died after the hearing of these applications and anonymity for her is no longer sought. A person has been approved by the Vice-President of the Court of Appeal Criminal Division pursuant to section 44A of the Criminal Appeal Act 1968 to take further steps in this appeal. That person has applied for anonymity. We have balanced the principles of open justice and protection and conclude that reporting restrictions should be ordered to prevent the identification of that person. Consequently, we direct, pursuant to section 11 of the Contempt of Court Act 1981, that no report of the proceedings shall include any fact that may lead to that person’s identification during their lifetime or until further order.

The Registrar has referred to the full Court the applicant’s applications for (i) an extension of time in which to apply for and (ii) leave to appeal against five sets of convictions, and (iii) permission to introduce fresh evidence relating to her status as a Victim of Trafficking (“VOT”)/Victim of Modern Slavery (“VMS”) pursuant to section 23 of the Criminal Appeal Act 1968.

The five sets of convictions arise from the applicant’s guilty pleas (assumed in relation to the 2011 conviction, for which no court papers now exist) in relation to:

Save for the 2011 conviction, for which she was sentenced to a Youth Rehabilitation Order, the applicant was sentenced upon the other convictions to immediate detention or imprisonment for terms ranging from 12 months to 3 years 9 months. From 2015, she was subject to the mandatory minimum term of 3 years’ imprisonment pursuant to section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 (now section 314 Sentencing Act 2020).

The grounds of appeal assert that all five sets of convictions are unsafe because of:

The original applications were lodged with the Criminal Appeal Office in 2022. The case was first listed for a final hearing before the full Court in March 2024. However, the applicant was untraceable for a time and subsequently suffered a severe decline in her mental health, such that a final hearing was not then possible. Consequently, the case was listed for directions on three occasions.

There were ongoing proceedings of similar ilk in the Crown Court at Snaresbrook relating to offences which allegedly occurred in 2021. The applicant was determined to be unfit to plead to the indictment. She was remanded and, eventually, hospitalised. The section 37 Mental Health Act order has since been discharged. If those criminal proceedings had resumed, which cannot now happen, we were informed that the section 45 defence would have been deployed.

The applicant’s mental health improved with treatment, and she was deemed fit by her treating psychiatrist to participate in these proceedings and give evidence with the assistance of an intermediary. She gave her evidence in writing in response to written questions drafted by the respondent (asked with the assistance of a paralegal from her solicitor’s office) and orally before us with the assistance of an intermediary, Dr Catherine O’Neill.

The “new” evidence consisted of voluminous social service records, several psychological and psychiatric reports, two Positive Conclusive Grounds Decisions (“PCGD”) made by the Single Competent Authority (“SCA”) in January 2016 and February 2022 and the judgment of the First Tier Tribunal (“FTT”) in May 2023 which upheld her appeal against deportation. The applicant also made statements to support her appeal in the FTT and before us in these applications.

The applicant was represented before us by Mr Ben Douglas-Jones KC and Ms Laura Kenyon. The respondent was represented by Mr Daniel Bunting. None of the counsel appeared at first instance. Counsel and solicitors who did represent the applicant at first instance responded to inquiries made of them pursuant to R v McCook [2014] EWCA Crim 734 (“McCook”). We refer to some of those responses as necessary below.

The respondent did not oppose the applications in relation to the convictions in 2011 and 2015 for reasons that are discussed below. However, the respondent did oppose the applications in respect of the remaining convictions.

The applicant was a member of the Roma community and was aged 29 (d.o.b. 8 March 1996) at the time of the hearing before us. She was known to social services throughout her childhood and the social service records disclose the significant physical, sexual and emotional abuse she endured throughout her minority within her extended family and community. Care proceedings were not commenced; the applicant’s removal to foster care was very short lived and social service oversight was periodically discontinued. The family were relocated on several occasions due to the adverse response of neighbours to incidents of theft, criminal damage and extreme anti-social behaviour committed by the applicant and her family members.

The applicant was known to have begun offending, said to be at the behest of an older brother, from the age of 6. Her first conviction for an offence of shoplifting was when she was aged 13. She made multiple appearances and had findings of guilt made against her in the Youth Court. These were, at the time of the hearing before us, the subject of an application made, or to be made, to the Criminal Cases Review Commission to refer to the Crown Court for appeal against conviction. Records indicate that she had abused aerosols, alcohol and drugs, committed acts of self-harm and attempted suicide on several occasions in what she indicated was despair at her predicament within her family and the Roma community.

The applicant was removed to a “place of safety” on three occasions to little effect. A witness statement from the applicant’s Offender Manager dated 29 October 2021 states:

“Ms Kwiatkowska alleged she was kidnapped from [the first location] safehouse and forced to commit a burglary; I believe Police took no further action in this case due to her status as a victim of modern-day slavery. She was then placed in a safehouse in [the second location] on 31/08/2021, but she fled this safehouse on 08/09/2021 stating she no longer felt safe at the property … Ms Kwiatkowska was authorised to temporarily stay at her Sister’s (sic) property … but then took up residence at a safehouse in [the third location] on 28/09/2021.

I was unable to reach Ms Kwiatkowska on 06/10/2021 … I contacted the [third location] safehouse who advised Ms Kwiatkowska … had been ‘in and out’ of the property, regularly staying out overnight, …”

A letter written by her immigration solicitor states that on 22 August 2021, the applicant was “abducted by men from the Gypsy community” near the Salvation Army accommodation where she was living. She telephoned the solicitor to inform them of her plight and the police were contacted. The applicant called again while police officers were present in a “highly distressed state” to say that she was being forced to commit burglaries and threatened at gunpoint. The matter was escalated to a critical incident. The applicant contacted the solicitor the same evening after she said she had run away from the men who had taken her to a hotel where the men sexually abused her. The police were directed to her location, they attended and took her to safety.

The psychological and psychiatric reports that were prepared in her regard recount the effect of the applicant’s highly dysfunctional and, undoubtedly, damaging childhood. At school, her IQ score was “well below” the cut-off point indicating a significantly reduced intellect. A psychiatric report from Dr S Gelati dated 26 September 2014 records “Maria has suffered a horrendous history of sexual abuse. …. At the age of 13 Maria was mentally and emotionally unwell and then started to deliberately self-harm. … my impression is one of emerging personality disorder; emotionally unstable type”. On 4 June 2021, Dr Anna Preston said that the applicant had “impaired intellectual functioning and ongoing complex PTSD”. On 30 November 2023, Dr Iain Kooyman, Consultant Forensic Psychiatrist undertook a psychiatric assessment of the applicant and concluded that she “suffers from a complex, but severe mixture of learning disability, personality disorder, PTSD and substance abuse.” He noted that “some prison health professionals have queried the extent of her learning disability” but found her to be “an extremely emotionally damaged woman” and that whilst it was “possible” that she had at times “exaggerated” her symptoms, this would not “explain her entire presentation”. He did not find evidence that the applicant was “excessively suggestible”, rather that she had “likely learned not to fight coercive control”.

All the convictions which are the subject of the applications in this Court arise out of distraction burglaries, predominantly in care homes for the vulnerable elderly. The applicant stole items of jewellery and cash. Her modus operandi was typical and adept, she would covertly steal money and items of value under the pretence of being a social/care worker checking upon her victim’s welfare. Mr Bunting, on behalf of the respondent, describes it as sophisticated and, by implication, not indicative of her being an unwilling offender, whereas the applicant maintained she was committing the offences at the command of members of the Roma community. The offences of fraud and battery arise in the circumstances of the burglary offences. The applicant stole a debit card and removed money from one of the victim’s bank accounts and pushed a care worker away who had intervened in one incident and sought to detain her.

2011 conviction: The applicant pleaded guilty to a burglary committed on 5 August 2011. The case predates the Crown Court Digital Case System. The respondent no longer has access to its file, neither do the solicitors who acted for the applicant at that time. The offence relates to the theft of a wall clock said to be valued at £10 from the home of an 82-year-old man, whom the applicant had previously said and continues to assert had been sexually molesting her. There is no transcript of the sentencing hearing on 16 January 2012. An incident report on 2 March 2011 records that “Joint visit conducted re disclosures that … Maria has disclosed to her YOT worker that he (sic) had been visiting her elderly neighbour with her cousin and drinking alcohol. Maria has also said that her neighbour has touched her breasts.”

On 5 November 2011, a social worker visited the applicant to discuss her forthcoming court appearance in relation to this offending. The social worker’s note suggests that the case had been sent to the Crown Court because the applicant refused to name her accomplice who was her cousin, and who hit the victim with a piece of wood. On 29 November 2011, the applicant repeated the allegations of sexual assault to another youth worker. The redacted pre-sentence report notes that the applicant explained the burglary as an “act of reprisal”. As indicated above, the implication is that the applicant pleaded guilty to the offence.

2015 conviction: The applicant came by a circuitous route to be sentenced in the Crown Court at Basildon for three offences of burglary committed on 2 May 2015. These proceedings also predate the Crown Court Digital Case System. A transcript of the prosecution opening and mitigation, but not the sentencing remarks, is available. In May 2015, the applicant committed three burglaries at a residential care home for the elderly in Leeds. She made no comment when interviewed under caution. The applicant was sent to the Crown Court at Leeds and remanded in custody. She made an application for bail, supported by a psychological report, on 26 May 2015. The application referred to the fact that she was from the Basildon area but was moved to Leeds by the police due to serious concerns over her personal safety within the Roma Community (see below). Prior to her remand, she lived in a hostel provided by Women’s Aid, which address and, it was said, whose support continued to be available to her.

The Court psychological report included the applicant’s account of her sexual abuse from about five years of age and being raped at her home when she was ten years old. The bail application was refused. Subsequently, the applicant pleaded guilty to the offences on 13 June 2015. The proceedings were transferred for sentence to the Crown Court at Basildon, where the applicant also faced a separate two-count indictment. No evidence was ultimately offered on those matters, and the applicant was dealt with for the Leeds offences only.

It appears that the applicant was sent for trial by the justices in Leeds on the basis that section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 applied (now section 314 Sentencing Act 2020) and therefore the offences were indictable only. A judge at the Crown Court at Leeds disagreed that it did apply, sat as a District Judge (magistrates’ courts), proceeded to deal with taking a plea and mode of trial and committed the case to the Crown Court for sentence. After the case was transferred to Basildon, the judge disagreed with what had taken place in Leeds, and “reversed” it, the applicant was re-arraigned and guilty pleas were entered. She was sentenced to 876 days’ detention.

No issue is taken with the technicalities of the legal process ultimately adopted and we have not embarked upon a root and branch review of what occurred. However, it appears to us that the judge in Basildon was correct. Section 111 of the Powers of Criminal Courts (Sentencing) Act 2000, as it then was, applied and the applicant was therefore subject to a mandatory minimum sentence of three years’ imprisonment. The Leeds judge had no jurisdiction to quash the magistrates’ sending. The Basildon judge had no power to “reverse” the decision of the Leeds judge but he did not need to, because the original sending remained valid.

Mitigation was advanced on the basis that the applicant had been relocated to Leeds because of allegations of abuse by her cousin, but that “her family effectively found her, tracked her down and found her up in the Leeds area”. In her McCook response, the applicant’s solicitor at the time said that she had highlighted her client’s vulnerabilities in her attendance note but had no personal recollection of what was discussed in this regard apart from the applicant requesting that her personal details be kept private because she was fearful of her mother and brother being made aware of them. She had no recollection of there being any concerns at the time relating to the applicant being a victim of modern slavery.

Social work records confirm that on 20 July 2014 the applicant made an allegation of historic rape against her elder male cousin and alleged that he pimped her out to an unrelated male. Police “received intelligence on 19th February 2014” that “due to Maria making these allegations … it has brought shame on the Gypsy community and as a result she was summonsed to see the Gypsy King where she would learn of her punishment”.

On 10 February 2015 the YMCA hostel in which the applicant had been placed on release from custody noted “Maria has been seen as she was upset and she told me that her family have come to the decision that she will be taken to the Gypsy King who is deemed the oldest and has the most wisdom in the gypsy community and he will make the decision whether she is banished from the community” in relation to this perceived misdeed, that is her involvement of the police.

On 18 February 2015 the applicant indicated that “she had been to see the gypsy king” and would “have to go back for a decision”. Her key worker noted that the applicant stated that she “… cant (sic) hide from the gypsy culture as they will track her down and this will make things worst (sic).” This was referred to the police and the applicant’s solicitor on a safeguarding basis. On 23 February 2015 it was noted that the police were taking the matter very seriously and were very concerned for the applicant’s safety. The applicant refused to discuss the matter with them. The police requested vigilance by YMCA workers and intended to conduct a risk assessment to put safety measures in place.

On 2 March 2015 four police officers arrived at the YMCA and stated that there had been a call to remove the applicant for her own safety. She was immediately removed to a “safe place” and by 12 March 2015 had been moved to a refuge in another area.

On 2 May 2015 she committed three offences of burglary. When she was arrested, she began to head butt walls and punch metal doors. She was restrained to prevent her self-harm. She was interviewed the next day but made no comment.

On 1 July 2015 the applicant wrote that she was, “very sorry about what I have did. I was on drugs at the time and was doing it for [REDACTED]. The second time I did it when I got caught by police I wanted to get catched (sic) to get away from [REDACTED].”

On 8 October 2015 a Salvation Army officer referred the applicant to the NRM. The applicant alleged that from the age of 11-12, she would be given cannabis before being taken by her cousin to different houses for the purpose of prostitution. Her cousin took payment from the men. She was taken to the Gypsy King who had come to Southend. He was abusive towards her and threatened that she would be physically hurt and tortured. She was ordered to pay him money until told that the debt was paid. She was then sent to Leeds to a women’s refuge, but she was seen in the town centre by one of her cousins who followed her to the refuge. They informed the Gypsy King of her whereabouts, and she was ordered to commit burglaries whilst the others stood outside to receive the stolen goods. The applicant was threatened by the family that if she tried to escape again, they would kidnap her. Her mother was unable to help her for fear of violence or ostracisation from the community.

On 20 November 2015 an email was sent to a local authority social services access team seeking an address for the applicant in anticipation of her release from custody on 23 November. The email noted the applicant’s severe learning difficulties and noted that on her last release from prison people were waiting outside court and “accosted her and coerced her into returning with the family.”

2017 conviction: The applicant pleaded guilty to two burglaries on 30 May 2017. The attendance note prepared by her counsel that day reveals that the applicant said that she wished to plead guilty, but also that the applicant “did put forward an account which may be consistent with duress” and that she was advised of the problems with it. She was not advised regarding the section 45 defence.

Counsel’s detailed McCook response is commendable for its candour and contrition. Her attendance note from the first PTPH on 30 May 2017 reads: “it appears that Ms Kwiatowska (sic) indicated to my instructing solicitors and at her first appearance that she would likely enter a guilty plea to these offences. … Advised as to evidence, credit, sentence (MMS) etc, D re-iterated guilty instructions. She did put forward account which may be consistent with duress. Advised as to this defence, problems with defence of this nature. D confirmed she wished to plead guilty. D wants to be sentenced for all matters together, she would like the case to be adjourned pending charges in outstanding burglary matters.”

Counsel said she had a Prison Video Link conference with the applicant in advance of the hearing “which is generally limited to fifteen minutes”. Counsel recalled that the applicant provided “an account of being “forced” in some way to commit the offences, as I have noted that I advised her that her instructions may be consistent with a defence of duress, although I also advised as to the limitations of that defence. Ms Kwiatkowska did indicate that she did not wish to put forward a defence of duress.” Counsel did not advise the applicant as to the section 45 defence but “fully accept[s] that I should have done so, particularly because many of the limitation (sic) of duress do not apply to a modern slavery defence. I cannot say today why exactly why I did not advise her of this defence. I am not sure whether it was because the defence at this time was still relatively new or because I associated the defence with offences which are committed as a direct result of “trafficking” rather than of forced / compulsory labour.”

Counsel further indicates “I also note that I do not appear to have advised her of the defence at any subsequent hearing (where I recall that she was produced at Court on at least one occasion). I represented Ms Kwiatkowska at a subsequent PTPH for similar matters on 12 September 2017. Again, a guilty plea was indicated in the magistrates court. She pleaded guilty, and I cannot see any reference to [the section 45 defence] in my attendance note. I consider it to be almost a certainty that I did not advise her of this defence.” The attendance note dated 12 September 2017 states “Conference with D, advised as to evidence, credit, sentence, plea etc. … D made full admissions to offences 1,2,4,5, she indicated that she wished to plead guilty to these offences … Conference with P[robation]. They have 2015 PSR, will see D today. … Sentence listed on 21 September 2017 at Basildon CC. D to appear via videolink (as per her request). Can IS please contact [previous] Solicitors. They dealt with D’s last case and may have a psychiatric report. There is reference to such a report in D’s 2015 PSR.”

A managing partner of counsel’s instructing solicitors has obtained access to the necessary papers. He confirms that there is nothing on the files to suggest that advice regarding the section 45 defence had been given, nor steps taken to refer the applicant to the NRM. “I do not have a definitive reason for this but I can confirm the … fact that she may have been exploited was not raised by her at the police station or at the magistrates court.”

Sentence was adjourned for a pre-sentence report. The applicant told the author of the report that she was forced to act by her husband who resided in Poland.

The judge in passing sentence, referred to the applicant’s “shocking record for dishonesty”' and took into account her “substantial learning difficulties”, that she was “more suggestible than the average adult”, that she had been “exploited in the past by an abusive husband” who had been violent, and that her “mental health ha[d] been damaged by dysfunctional childhood experiences and sexual abuse”.

2019 conviction: When interviewed under caution, the applicant made full admissions. She said “I got forced to do it since I was young. And I can’t stop all of that. I’ve been deported. It didn’t help. They brought me b (sic)back in here just to commit crimes and then go back. So all of that, yeah, I am guilty …there is a reason sir why I’m doing this, until I was a child can you just, why do you think I’ve left every single crime, fingerprints, so you guys find me”. When asked who was responsible, she said, “its (sic) this gypsy community, gypsy king and its one of my family”. When asked where the gypsy king was, she said he was in Poland. She went on: “since I was a child I’ve been forced to be, I’ve been trafficked and I’m still being trafficked sir, and it’s because I’m not getting the help that I should be getting. I’m doing crimes that I don’t want to do even”. She said she got “raped every single day”, by “customers”.

The applicant indicated guilty pleas at the first hearing before the magistrates’ court on 20 July 2020 but entered a not guilty plea at the PTPH on 14 March 2019. She changed her plea at a hearing at which she was represented by counsel.

In his McCook response counsel states that, although he was not instructed at the PTPH, he understood that reference had been made to trafficking and a potential defence. Relevant documents – including a psychiatric report and Salvation Army records – had been obtained following the PTPH by his instructing solicitors, and they were provided to him. The psychiatric report was that of Dr Cappai which noted the applicant’s account of exploitation and compulsion to commit offences under threat. Dr Cappai considered that “her early life experiences of childhood sexual and physical abuse and ongoing psychological distress, in particular her learning disability would impair Mr Kwiatkowska (sic) ability to cope with … members of her community” and that “her diagnosis of moderate learning disability, which is a chronic, long- standing condition, would have impacted on her ability to cope with the alleged unwanted requests from her community to carry out the alleged offences”.

On 13 May 2019 the applicant said that she wanted to plead guilty and be sentenced. “She was concerned about being believed and/or found guilty anyway (i.e. regardless). She maintained she was compelled / pressured. She referred to being able to go to police or a refuge. She suggested threats to kill or rape were “not there” at the time (though they needn’t have been immediate). Since she had a potential defence, she was advised that if she pleaded guilty it meant she accepted she had a choice, a ‘realistic alternative’ (within the meaning of s.45). She wanted to plead guilty. She was advised she would serve a long sentence. She wished to plead and be sentenced”.

Counsel produced an attendance note from the hearing to like effect, indicating that the applicant had admitted the offences in interview but claimed she felt compelled to commit them. The applicant was detained and subject to immigration proceedings and did not have access to her school and medical records from childhood which she had been told would be relevant to any determination of her immigration. She signed a consent form allowing her mother to obtain those records up to her 16th birthday. “For the same reasons she asked IS to send her a copy of all the documents which I have been sent i.e. her psychiatric report, YMCA documents, Salvation Army references and [previous solicitor’s notes relating to her previous offences.] … She did not want her mother to have copies of those documents (hence the proviso by age in the consent form).”

Accompanying the attendance note was an endorsement in the following terms:

“I, Maria Kwaitkowska, confirm I want to plead guilty and be sentenced today as per my instructions.

I confirm I want my psychiatric assessment to be served on the court for the purposes of sentence. I have had its contents summarised to me and I agree them.

I understand that if I plead guilty I cannot say that I had no choice, or no alternative, but to commit these offences. I maintain that I felt pressured into committing them but accept that I had a reasonable alternative. I do not want to put in a basis of plea. That means I do not want to plead guilty but on my own facts. I understand that if I do that then there is a risk that I might be asked to give evidence to a Judge and I will lose some of my discount for pleading guilty. I accept committing the offences as the prosecution say. I want my background to be referred to by my barrister to try and get a lesser sentence.

I understand that I will very probably get a sentence over three years and it could be as high as five years.

I have not been pressured into this decision. I have decided on legal advice to plead guilty.

My reading is not good. I have had this read to me by my barrister and I agree it is true. I am able to sign my name.”

In sentencing, the judge said: “I fully recognise that you suffer from a number of mental health disorders including the fact that you have a very low IQ, and it is suggested that you have the mental age of nine, although you are clearly sophisticated enough to commit these burglaries, and that you are acting under pressure.”

2020 conviction: In her McCook response, the applicant’s solicitor stated that the applicant was advised that “she may have a defence”, but that she “did not want to listen as she wanted to plead guilty and get out of prison as soon as possible.” There were three attempts to have conferences with her in prison, none of which was able to last more than twenty minutes before the applicant terminated it.

Counsel also provided a detailed response. He was instructed the evening before the hearing which was to be conducted via CVP. He had had no prior dealings with the applicant. He received access to the digital case system and was also sent an attendance note from a hearing in the magistrates’ court, dated 20 July 2020. He was instructed, orally, that the applicant wished to plead guilty and that her primary concern was being released from prison as soon as possible. He was instructed as to the applicant’s antecedents “of a near identical nature and that her intended guilty pleas were consistent with those pleas.” He was aware that the applicant had been advised regarding the section 45 defence relating to compulsion/exploitation. The applicant was adamant that she wished to plead guilty and did not want the proceedings to be further delayed. His prehearing conference time with the applicant was likely to have been limited to 15 minutes. He advised the applicant on the evidence, law, and sentence. He recalled the applicant being “concerned and distressed as to the sentence she would receive.” However, “[s]he was adamant that she wished to plead guilty and have the case resolved as soon as possible. She was concerned about whether these offences would impact the sentence she was already serving and she was concerned about any delay that could impact the issue of credit for her pleas.” He was unable to take any endorsement from the applicant due to the hearing being conducted over CVP. Shortly before the hearing he received an email from his instructing solicitors containing reports from the Salvation Army and a signed NRM consent form, dated 8 October 2015 and Dr Cappai’s psychiatric report. He sent an email to his instructing solicitors requesting that the documents be uploaded to the DCS “as a matter of urgency” and referred to the contents during mitigation. If he had received instructions that the applicant had been compelled or forced to act in the way alleged prior to arraignment he would have advised her on the section 45 defence. The judge “made it plain from an early stage” that she would pass a sentence of imprisonment to run concurrently alongside the sentence already being served which reinforced the benefit to the applicant of pleading guilty and requesting an immediate sentence.

On 9 March 2016 the applicant made an application for asylum, which on 29 June 2016 was declared inadmissible. On 7 July 2016 the applicant was served with notice of a decision to make a deportation order. On 19 July and 10 August 2016 the applicant signed a disclaimer. The applicant was deported on 9 September 2016.

The applicant re-entered the United Kingdom, in breach of the deportation order, by 14 April 2017, when she committed the first of the offences for which she was convicted in 2017. Home Office records state that she claimed to have re-entered the United Kingdom from Poland 2 weeks before.

On 19 April 2018 the applicant was again deported from the United Kingdom. On 19 May 2018 she attempted to re-enter the United Kingdom through the port of Holyhead. She was travelling with M, who she said was her husband. The applicant was refused admission and detained. She was served with removal directions on 23 May 2018 and deported again on 25 May 2018.

The applicant returned to the United Kingdom less than five months later. On 28 May 2020 she appealed against her deportation order. On 27 July 2020 the FTT granted her permission to appeal out of time. On 24 March 2021 the Secretary of State authorised the applicant’s detention for removal, upon the conclusion of her serving her sentence. On 20 June 2021 a Home Office panel recommended release on the basis that removal within a reasonable time frame may not be possible. The applicant was released around 30 June 2021.

On 22 May 2023 the FTT allowed the applicant’s deportation appeal, finding her account of being exploited in Poland and trafficked back to the United Kingdom to be detailed and credible.

There is an issue between the applicant and the respondent as to the voluntary nature of the applicant’s first deportation to Poland and subsequent repeated illegal returns.

The applicant has provided witness statements in the FTT proceedings and in support of these appeals. She provided a description of the role and importance of the “Gypsy King”. He is said to be based in Poland. It is necessary to do whatever the Gypsy King says. There are lots of rules for Roma people. “If you do anything bad the Gypsy King decides what will happen as you have to tell him. It is a very messed up culture.” The worst thing you can do in Roma culture is “snitch”. After she made the allegations of rape and sexual assault against her cousin his father called the Gypsy King in Poland. He came to the United Kingdom. “This was when I became his slave … My mum was crying. She was sad for me and sad for what was going to happen … My mum begged me to drop the charges so I did.”

The applicant described an occasion when she was deported and taken from the airport in Poland to the Gypsy King’s house. She stated she was taken to a room and constantly raped, by around thirty people. She was kept in the house for “about a month”. She was forced to marry, and to engage in prostitution, then ultimately taken back to the United Kingdom. After further offending, she was deported again, and “the same thing happened”, with a return to the Gypsy King, further rapes, another forced marriage, and further prostitution. She was again brought to the United Kingdom but was “caught bu (sic) by the immigration people” and returned, following which she was subjected to further rapes. She finally returned to the United Kingdom with her older brother.

An expert report prepared by Colin Carswell dated 28 September 2022 supports the general nature of the applicant’s claims regarding Roma culture. He confirms that a hierarchical structure exists as it does within Roma organised crime networks. “Loyalty is absolute and fixed within the Roma culture. This can include debt bondage where families are due to pay their clan head for the costs of being taken from country to country and permission to commit their crimes or for the work they are given. … debts are not written contracts, the debt will increase with ‘interest’ and at times a victim can remain exploited for up to 10 years.” Forced marriages occur to “bond families or groups together.” “Loyalty is expected and enforced.”

As indicated above, the applicant was first referred to the SCA by the Salvation Army. In the PCGD on 8 April 2016 it is found that, on the balance of probabilities, the applicant had been “a victim of slavery, servitude or forced/compulsory labour” although no dates were given.

The applicant was re-referred to the SCA by the police on 8 February 2022, following a further arrest. She received a PCGD on 21 December 2022 stating that it had been decided, on the balance of probabilities, that she had been a “victim of sexual exploitation and domestic servitude in Poland and Germany on various dates between 2016 and 2019” and “a victim of criminal and sexual exploitation in the UK on various dates between 2016 and 2022”.

Although they would not be admissible at trial, we have had due regard to the minutes of these decisions (see R v Brecani [2021] EWCA Crim 731 and R v AAD [2022] EWCA Crim 106 (“AAD”) at [81]). The decision in 2016 adds nothing to the social service records. The 2022 decision is dependent upon the applicant’s self-report which has been subject to cross examination as indicated above.

In her written answers to questions posed by Mr Bunting, the applicant indicated that she had met the Gypsy King “A lot of times”. She had paid back £20,000 of her £25,000 fine some years before by committing burglaries. The Gypsy King had threatened her family. He had come to the United Kingdom to “put me in prostitution, to burgle people’s homes”. After she returned to Poland in 2016, she was locked in a room. She had spent a month in a psychiatric hospital in Poland but had not said anything in order to protect her family and because she was on strong medication. The Gypsy King’s servants collected her from hospital and soon after she was sent back to the United Kingdom to burgle. She had not asked border officials for assistance. She was travelling with her “traffickers”. In April 2017 she was “prostituting”. She had told her solicitor in 2017 about being forced to do burglaries, but the solicitor had “wanted proof” so “I just gave up”. She told her counsel in 2017 that she wanted to plead guilty. “The only reason I pled guilty to all my sentences is because I needed safety. I needed a break from everything. And I always left my fingerprints because I needed the police to find me”.

The applicant said she told the Home Office in 2018 that she was worried about going back to Poland but “they didn’t care”. She told her family she was returning because “I needed the support”. The Gypsy King had discovered that she was back in Poland because someone saw her. She had been forced to marry M. She had told the border officer in Wales that she was being trafficked. M went to stay with the applicant’s mother.

In 2019 the applicant did not tell the Home Office what had happened to her in Poland previously. The Gypsy King discovered where she was again. She was returned to the United Kingdom within “days.” She stayed at a hotel with “traffickers”. She had seen the Gypsy King shoot someone dead in Poland. The Gypsy King had threatened to kill her if she did not commit the burglaries. She told the solicitor and advocate who represented her that she wanted to plead guilty because she “needed the safety”. She did not mind about the length of the sentence. She needed “a break from everything”, she was too traumatised and “was getting raped constantly, drugged”. She left the “community” in 2019. She “just left”. It was just £5000 that she owed the Gypsy King. “He doesn’t mind that much anymore, because I am free.” It was traffickers who worked for the Gypsy King who kidnapped her in Harrow in 2021. It was probably her cousins who told them where she was because “they’re just gypsy worth”. She was forced to do another burglary in 2021 because she “had a gun in her head”.

We regarded it to be “necessary or expedient in the interests of justice” to receive evidence relating to the applicant’s background and mental health that was not adduced in the proceedings from which these applications for leave to appeal convictions arise; see section 23(1)(c) Criminal Appeal Act 1968.

Section 45 of the Modern Slavery Act 2015 came into force on 31 July 2015 and provides, as far as relevant:

“(1)

A person is not guilty of an offence if—

(a)

the person is aged 18 or over when the person does the act which constitutes the offence,

(b)

the person does that act because the person is compelled to do it,

(c)

the compulsion is attributable to slavery or to relevant exploitation, and

(d)

a reasonable person in the same situation as the person and having the person's relevant characteristics would have no realistic alternative to doing that act.

(2)

A person may be compelled to do something by another person or by the person's circumstances.

(3)

Compulsion is attributable to slavery or to relevant exploitation only if—

(a)

it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or

(b)

it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation.

(4)

A person is not guilty of an offence if—

(a)

the person is under the age of 18 when the person does the act which constitutes the offence,

(b)

the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and

(c)

a reasonable person in the same situation as the person and having the person's relevant characteristics would do that act.

(5)

For the purposes of this section—

“relevant characteristics” means age, sex and any physical or mental illness or disability;

“relevant exploitation” is exploitation (within the meaning of section 3) that is attributable to the exploited person being, or having been, a victim of human trafficking.

….”

The legal principles underlying the section 45 defence were comprehensively reviewed in R v AFU [2023] EWCA Crim 23 (“AFU”)at [81] to [119], following the decision in AAD. No new or different legal issues arise in this case. The two authorities confirm that the abuse of process doctrine that was relied on to protect the rights of suspects who are alleged victims of trafficking prior to the implementation of section 45 continues to apply in cases that post-date the implementation of section 45. The correct approach remained as formulated in R v GS [2018] EWCA Crim 1824 (“GS”) at [76(v)], viz:

“As always, the question for this Court goes to the safety of the conviction. However, in the present context, that inquiry translates into a question of whether in the light of the law as it now is (this being a rare change in law case) and the facts now known as to the Applicant (having regard to the admission of fresh evidence) the trial court should have stayed the proceedings as an abuse of process had an application been made. This question can be formulated indistinguishably in one of two ways which emerge from the authorities: was this a case where either: (1) the dominant force of compulsion, in the context of a very serious offence, was sufficient to reduce the Applicant's criminality or culpability to or below a point where it was not in the Public Interest for her to be prosecuted? or (2) the Applicant would or might well not have been prosecuted in the Public Interest? If yes, then the proper course would be to quash the conviction. As explained in Joseph (Verna) at [20 iii)], the Court's power to stay is "a power to ensure that the State complied with its international obligations and properly applied its mind to the possibility of not imposing penalties on victims".”

Subject to issues of public interest and the section 45 defence, the submissions made by Mr Douglas-Jones have questioned the integrity of the applicant’s pleas in the context of her limited intellect and vulnerabilities. However, this Court has previously, in discussion during a directions hearing (see [6] above), questioned whether evidence would be sought to suggest that the applicant was unfit to plead to the offences the subject of these applications. None has been forthcoming.

In this respect it is relevant to note section 1 of the Mental Capacity Act 2005:

“1.

The principles

(1)

The following principles apply for the purposes of this Act.

(2)

A person must be assumed to have capacity unless it is established that he lacks capacity.

(3)

A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4)

A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

…”

Otherwise, the principles of law applicable to appeals against conviction following a guilty plea are well and recently established: see R vTredget [2022] EWCA Crim 108 at [154] – [180].

With these several principles in mind, we turn to consider the convictions in turn.

We note that the applicant’s consistently expressed reason for committing the offence was that it was in retaliation for the alleged sexual abuse perpetrated against her by the victim. Mr Douglas-Jones concedes that this explanation does not amount to a “dominant force of compulsion” but submits that the “exceptional” circumstances of the applicant’s background would reduce her culpability or criminality to a point where it would not be in the public interest to commence or maintain a criminal prosecution: see R v AJW [2023] EWCA Crim 803 at [24].

In the Grounds of Opposition prepared by Mr Johnson (as he then was) which Mr Bunting adopts, it is said that “Had all that is known now been known at the time of the offending, it is highly unlikely that the Applicant would have been prosecuted for her earlier offending, including [the 2011 conviction]”. The applicant’s childhood experiences rendered her in “need of protection, not prosecution”.

We are confounded why the facts of the burglary, albeit aggravated by the presence of the elderly victim who was manhandled by another young female, (whom the applicant refused to name) meant that a 15-year-old defendant was committed to the Crown Court. The offence was not grave. The applicant’s previous record of offending was not that extensive nor serious in the nature of offending.

We have not investigated the adequacy of the relevant local social services’ response to the seemingly overwhelming issues in the applicant’s childhood, and, in the circumstances, it would be inappropriate to comment further. However, what is clear is that their intervention was unsuccessful. The applicant was undoubtedly subject to adverse experience of family life and malign and criminal influences were exerted upon her during her minority. This has been rightly recognised in the sentencing remarks in subsequent court proceedings.

We agree with the respondent’s assessment that, in the circumstances, the public interest did not require the applicant’s prosecution and to proceed would, exceptionally, amount to an abuse of process. A “conviction on a guilty plea in a case involving an abuse of process is as unsafe as one following trial”: see AFU at [141]. We extend time, grant leave and allow the appeal against the 2011 conviction.

The convictions precede the commencement of the section 45 defence. Mr Douglas-Jones nevertheless submitted that there is clear evidence that the applicant acted under a dominant force of compulsion. The respondent “does not suggest there is a good reason to depart from [the 2016 PCGD].” The applicant was a VMS. There was a nexus between her status as such and the offending. “The Respondent has concluded that had all the material relating to events in 2015, as summarised above, been before the Crown Prosecutor, it is quite probable that the Crown Prosecutor would have concluded that was the case.” Mr Bunting did not resile from the written submissions in the Grounds of Opposition.

We note that the applicant was an adult at the time of committing these offences. The victims were vulnerable and targeted. In other circumstances there would be no question but that it was in the public interest to prosecute the applicant. However, we are satisfied that there was sufficient information as indicated in [21] to [29] above which should have alerted the police to her status as a VOT/VMS and subsequently to require the prosecution to assess the level of her culpability accordingly. This would not necessarily have led them to reach a decision that it was not in the public interest to prosecute the applicant: see GS at [76]. As we indicate below, and we stress that this is not to be taken as licence for the Crown Prosecutor to abrogate their responsibility to consider the public interest in prosecution in the fact specific circumstances of the individual case (R v L(C) [2013] EWCA Crim 991 as cited in AFU at [111]), there will come a stage when a “line must be drawn in the sand” and it will be reasonable for the Crown Prosecutor to conclude that, for reasons that are referred to below, it is in the public interest for a jury to determine whether the section 45 defence applies.

However, “the decision to prosecute is ultimately for the prosecution”: see the authorities as discussed in AFU at [113]. This applies equally to a decision not to prosecute. The concession that the prosecution would probably not have been commenced or maintained in 2015 is not “clearly flawed” and carries considerable weight. Consequently, we extend time, grant leave and allow the appeal against the 2015 convictions.

The Grounds of Opposition identify the respondent’s reasons for taking a different approach to the three sets of convictions that followed in 2017, 2019 and 2020. Mr Bunting has adopted them in oral submissions. In summary, it is said that there is a “lack of any evidence in relation to this period”, particularly following her deportations and illegal returns. Her accounts had not been tested in cross-examination. In 2019 she accepted that she had “reasonable alternatives” to committing the offences: see [45] above. There is no good reason this acknowledgment should not equally apply to the offending concerned in the 2017 and 2020 convictions. Extensive efforts have been made to provide the applicant with support including providing her with alternative accommodation and separation from her family; she did not take advantage of them. The analysis of the public interest in bringing proceedings would have had to take account of the numerous times the applicant had offended in this way, whether that earlier conduct had been prosecuted or not.

We do not accept that there is “a lack of any evidence” concerning the period between 2017 and 2020. The Grounds of Opposition recognises that Mr Carswell has “demonstrated expertise in relation to the Roma community.” The applicant has provided accounts in writing to the FTT and in statements and written responses to questions in this Court which are congruent with the expert report. She has also given largely consistent accounts to psychologists and psychiatrists.

As indicated above, the applicant also gave oral evidence before us. Inevitably, given the passage of time, our knowledge of her background, the diagnoses of PTSD, and the expert opinions, particularly that most recently of Dr Kooyman regarding her presentation, we found ourselves in a position where we were only able to assess her responsiveness to questioning. We concluded that she was not deliberately mendacious in the evidence she gave. Her reliability was nevertheless questionable. There were several factual inconsistencies, and, for example, her perception of her husbands and marriages was, by the time of the hearing now more favourably expressed than hitherto described. Her repeated mantra was that she had been “trafficked”. She, understandably, was not taxed on what she agreed in the endorsement were “reasonable alternatives” that existed in 2019, and these must be assumed from the general chronology and overall circumstances.

Specifically, in that the applicant took issue with the evidence regarding her willingness to be deported, we prefer the documented reports of her request to be returned to Poland made in 2016, 2017 and 2018. However, we are not persuaded that the corresponding illegal returns to this country must necessarily be vested with the same degree of free will on the applicant’s part. Her returns to the United Kingdom and continued offending may not have been entirely voluntary, as the findings of the FTT in 2023 would suggest: see AFU at [89].

We accept that she was in the thrall of others to some degree. In this last aspect, we find Dr Kooyman’s expert opinion, as recorded in the last sentence of [16] above to be discerning and was confirmed by the applicant’s evidence and presentation in the witness box. In any event, we find this issue would not necessarily be determinative in any consideration of the public interest in her case.

We consider the applicant’s repeated serious offending to be of greater significance in the equation as was the “traffickers” continued exploitation of her position. Although her traffickers obviously had little regard for the consequences to the applicant in being arrested, convicted and imprisoned, they would undoubtedly redouble their demands that she acted in the distraction burglaries if they knew that it was likely that her life experiences and personal characteristics would tip the balance of the public interest against prosecution.

Mr Douglas-Jones concedes that a “line in the sand” may appropriately feature in the Crown Prosecutor’s “sensitive” consideration of the public interest in prosecution of repeated offending committed by a VMS/VOT, but submits that it had not been reached in the applicant’s case at any time leading up to 2020 (and presumably beyond) because of the “exceptional” background circumstances established to exist. This is a submission made as an assertion, no doubt emboldened by the unusual aspects of Roma culture revealed by the “new” evidence and the intellectual challenges under which the applicant labours.

Whilst noting that it is uncommon for there to be such a body of contemporaneous materials corroborating an account provided by a VMS/VOT, and lending support for the consequent events that she describes, we remind ourselves that all VMS/VOT’s have an “exceptional” background so as to require their identification and protection and to enable their access to a section 45 defence.

We reject Mr Douglas-Jones’ submission that what he asserts to be the gross dereliction by all relevant authorities of their obligations under the 2005 Council of European Convention Against Trafficking in Human Beings (“ECAT”) to disrupt the repeated trafficking of the applicant must be weighed in the balance in this regard. We did not regard this assertion to be wholly warranted on the agreed facts, especially by reference to the applicant’s own refusal to substantiate her complaints against her family members or others.

We are satisfied that a decision in the public interest to prosecute the applicant in 2017, if taken with full knowledge of the facts would have been finely balanced but, it cannot be successfully argued that it would have been fatally flawed.

However, that is not the end of the matter. As is made clear in [33] to [37] above, the applicant was not advised upon the section 45 defence. We note that the applicant must have given instructions to her counsel which, even in the constraints of the remote pre court conference conducted with an intellectually challenged defendant via CVP in the space of 15 minutes, raised a sufficient basis for advice to be tendered on the merits of the defence of duress. The precise details of the advice tendered are not available, but Mr Douglas-Jones does not suggest that it was erroneous.

As he did in R v PK [2017] EWCA Crim 486, Mr Douglas-Jones submits that the appropriate checklist in cases when no specific advice has been tendered is that to be found in R v Dastjerdi [2011] EWCA Crim 365 at [9] to the effect:

"… It seems plain that [the Applicant]:

(1)

should have been advised about the possibility of availing himself of the s 31 defence;

(2)

he was not so advised;

(3)

had [the applicant] been so advised, it was open to him to advance the defence;

(4)

the prospect that [the applicant] would have been able to successfully to (sic) advance such a defence were good. …”

As neatly encapsulated in Archbold 2025, paragraph 17B-120, section 45 “does not use the word “duress”, but the defence for which it provides is in effect one that is available to a person who has committed an offence under duress.” We agree. There is little to distinguish between the features of either defence save that one is more tangibly expressed in the 2015 legislation.

There is no issue but that there was an evidential basis upon which the applicant could advance the defence and which for present purposes we are prepared to accept would probably have succeeded in light of the admissible new evidence. The question for us therefore is whether the lack of specific advice on the section 45 defence made a difference to the applicant’s decision to plead guilty.

We note that in response to the question (58) in writing posed by Mr Bunting: “That day at Snaresbrook, did you say that you wanted to plead guilty or not guilty?”, the applicant responded: “Guilty. The only reason I pled guilty to all my sentences is because I needed the safety. I needed a break from everything. And I always left my fingerprints because I needed the police to find me.” This was consistent with the evidence which she gave before us, albeit that evidence was focused on her guilty pleas in 2019.

We note also the applicant’s answer to Mr Bunting’s written question in relation to her instructions to the solicitor at the police station in 2017: “What did you tell your lawyer?” The applicant said, “I told her that I am being trafficked. She said where is the proof, where is it. She made it up, so I just gave up. Because all my life I have been speaking about it.” This is at odds with the solicitor’s response to the McCook inquiries, see [37] above, but accepting for this purpose that the applicant is correct, we accept that it may be that in 2017 more positive advice on the merits of a section 45 defence, which counsel in retrospect believes she would have given, may have encouraged the applicant to have availed herself of the defence.

It was impossible to investigate this issue further in cross examination. However, as indicated in [91] above, the differences between the defence of duress and the section 45 defence are modest, and the burden to negate the defence in both cases would fall on the respondent at trial. We are satisfied that the general position of compulsion was discussed with the applicant by counsel and the applicant chose not to pursue it. Any nuances in distinction would have been lost on the applicant and were in essentials, on her case, unimportant. It is unrealistic to suggest that, if counsel were to have expressly mentioned duress in the section 45 defence as an alternative to duress, it would have made a difference. The applicant’s own evidence as recorded in [93] above is that she pleaded guilty because she wanted sanctuary. The applicant’s decisions in 2019 and 2020 are also revealing in this respect. We conclude that if she had been advised of it she would not have availed herself of the section 45 defence in 2017.

As in the case of the 2017 convictions, and for the reasons we give in [79] to [86] above, we find that there was no abuse of process in proceeding to prosecute, or maintaining the prosecution against, the applicant. If anything, the public interest in enabling a jury to examine the prospective section 45 defence had increased.

Mr Douglas-Jones does not dispute the McCook responses regarding the advice tendered, or attempted to be given, to the applicant on the section 45 defence in 2019 and 2020 respectively, as referred to in [40] to [45] and [47] and [48] above.

We accept, without hesitation, that the 2019 endorsement is written in legalese and that the applicant’s signature does not connote her dictation, nor precise understanding of the term “reasonable alternative”. However, we are satisfied that, read in the context of the whole endorsement and the response to the McCook inquiries, she received careful and comprehensive advice and was able to understand the impact of her decision. The reasons she gave to counsel for reaching her decision to plead guilty do not indicate any lack of capacity on her part. It matters not that, as has been argued, the defence would probably have succeeded. The applicant, as was her right, elected not to pursue it.

In 2020, the applicant was unwilling to listen to any advice. There is, rightly, no suggestion of undue pressure advanced by Mr Douglas-Jones in oral submissions. In the circumstances described in [47] and [48] above, her firmly held intention and decision to plead guilty was to avoid the prospect of an extension to her prison sentence. This thought process is rational. Her decision was reasoned and was not at all “unwise” or in any other respect indicative of a lack of capacity to make the decision: see [68] above.

Although we are satisfied that we should grant leave to appeal, we dismiss the appeals in respect of the 2017, 2019 and 2020 convictions.

The appeals in relation to the applicant’s convictions in the Crown Court in 2011 and 2015 are allowed. The appeals in relation to the applicant’s convictions in 2017, 2019 and 2020 are dismissed.